Order Protecting Woman Was Available

Gloucester Sheriff Keeps Copies Near Magistrate

GLOUCESTER — A magistrate who said he couldn't check the terms of a protective order issued for a now-dead woman had only to walk 30 feet down a hallway to see the judge's order.

Magistrate D.G. Wallace decided last Friday not to issue an arrest warrant charging the woman's husband with violating the no-contact order, although the husband had been telephoning his wife. The order, signed by Juvenile and Domestic Relations Judge Isabel AtLee, said Alan Craig Smith was to have "no further contact of any type" with Nancy Ann Smith.

FOR THE RECORD - Published correction ran Saturday, January 15, 2000.Articles in Thursday and Friday front section about a murder-suicide in Gloucester County incorrectly gave Magistrate D.G. Wallace's middle initial as W. (Text has been corrected)

Less than 24 hours after Wallace made his decision, Alan Smith shot his 15-year-old daughter in the thigh before shooting and killing Nancy Smith and himself.

Wallace's boss, William J. Poggione, who is chief magistrate of the Ninth Judicial Circuit, said Wednesday that Wallace told him a Gloucester deputy did not bring him the court order when they discussed Smith's calls and a possible criminal charge.

Maj. Michael L. Nicely of the Gloucester Sheriff's Office said Thursday that copies of protective orders are kept in the dispatchers' office, where they are available 24 hours a day. The magistrate's office in Gloucester is in the county jail, which adjoins the sheriff's office building.

Other local law enforcement departments - such as the York County Sheriff's Office and police departments in Williamsburg, James City County and Newport News - said Thursday that they also keep copies of protective orders available around the clock. Those copies are in addition to the ones filed in court and given to the people named in the orders.

Even though Wallace didn't see Smith's protective order, he decided "phone calls were not a danger to Mrs. Smith," according to a police report. Poggione said Wallace made the decision about the order based on information the deputy gave him. The deputy told Wallace the calls were not threatening, he said.

"Certainly what he heard did not give rise to what appeared to be a violation," Poggione said.

Poggione also said Wallace believed the calls were made by a go-between for Smith, not by Smith himself. However, notes made by Nancy Smith that were attached to the police report indicate otherwise. They say her husband "called and said 'Nancy please don't hang up on me.' I told him I was."

Nancy Smith's boss said Smith called his wife twice at her job Friday morning before the boss told the switchboard not to put any more calls through.

The boss, Jo Ann C. Dutton, director of nurses at Sanders Nursing Home in Gloucester, said Nancy Smith was extremely fearful. "She was crying and she was trembling and said, 'He says soon we'll both be dead,'" referring to mother and daughter. Dutton is the person who initially contacted the sheriff's office about Smith's phone calls. The deputy went to the nursing home and interviewed Nancy Smith.

Issuing a warrant is "a judgmental thing," Poggione said. "It's a lot of what-ifs. These situations are not cut-and-dried."

Gloucester's Nicely said that a 1997 state law allows police officers to arrest people without a warrant if they think there is probable cause to believe a protective order has been violated. However, he said, the suspected violator cannot be held in jail if the magistrate refuses to charge him.

Poggione said, "Law enforcement is responsible for the protection of people and property."